Academic round-up

Posted Tue, September 7th, 2010 7:00 am by Amanda Frost

Citizens United v. FEC, one of the most high-profile decisions of the 2009 Term, struck down limits on corporate campaign spending (and, by implications, limits on union spending as well). The decision has already been the subject of numerous academic articles attempting to gauge its likely effect on campaign finance regulation and the potential for political corruption.

Two articles forthcoming in the Harvard Law Review propose methods for countering the political corruption that some fear will result from corporate contributions. Samuel Issacharoff suggests that reforms designed to increase campaign contributions by non-corporate donors would help to diminish corporate influence. He also favors prohibiting such spending by entities uniquely capable of distorting government policy, such as government contractors. In a separate article, co-authors Lucian Bebchuk and Robert Jackson contend that decisions regarding political spending differ from ordinary business decisions, and thus they propose new rules to align corporate political speech with shareholder interests.

In a forthcoming article in the Michigan Law Review, Rick Hasen predicts that the Court will find it difficult to apply the decision's sweeping statements regarding the First Amendment and campaign contributions consistently in future cases. For example, the majority’s rationale suggests that there can be no limits on campaign contributions by foreign nationals"”a position that he doubts the Court will be able to sustain in the face of hostile political and public reaction. Hasen thus concludes that Citizens United will exacerbate existing doctrinal incoherence in this area of the law as the Court is forced to make exceptions to its broad pronouncements.

Finally, Deborah Hellman's article in the Minnesota Law Review challenges the assumption that contributing money to campaigns constitutes speech protected by the First Amendment. Hellman concedes that money facilitates speech, but she points out that money facilitates the exercise of many constitutional rights and yet spending in furtherance of other rights is not always constitutionally protected. As Hellman acknowledges, her article questions an assumption that the Court now takes as a given, and that it is unlikely to abandon in the near future.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.